The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-04-15
An Important Decision i'm Equity.


In the Supreme Court yesterday, HIS
Honor the Chief Justice rendered an Opin-
ion in the case in equity of Clarence w.
Ashford vs. w. S. Luce, of which the fol-
lowing is a copy:
This is bill in equity to restrain, by in
| junction, the erection by defendant of a
! building which the plaintiff alleges will
! shut out the light and air from a window
| in certain premises occupied by the plant
! if as an office The bill alleges that the
window in the premises in question is an
ancient light, and it has existed unob-
structed for the space of fifty years.
The defendant demurs to the bill and
submits that no easement to light and air
can be acquired by prescription in this
Kingdom.
This question is thus raised for the first
time in this country. By the law of Eng
land such an easement can be acquired.
find that in the United States the Courts of
the several States have declared to adopt
this principle, with the exception of Mary
land.
A recent case (1874) in Massachusetts,,
Keats VS.. Hugo, 115 Mass, 204, reviews all
the American cases thoroughly. The
Court, per Gray, C. J., (now on the Su-
preme Bench of the United States) say:
"By nature, air and light do not flow in
definite channels, but are universally diff
fused. The supposed necessity for their
passage in a particular line or direction to
any lot of land is created not by the rela-
tive situation of that lot to the surround
ing lands, but by the manner in which
that lot has been built upon. The actual
enjoyment of the air and light by the
owner of the house is upon his land only
He makes no tangible or visible use of the
adjoining lands, nor indeed any use of
them which can be made the subject of an
action by their owner, or which in any
way interferes with the latter's enjoyment
of the light and air upon his own lands, or
with any use of those lands in their exist !
ing condition. In short, the owner of the |
adjoining lands has submitted to nothing
which actually encroached upon his rights, |
and cannot therefore be presumed to have /
assented to any such encroachment. The !
use and enjoyment of the adjoining lands
are certainly no more subordinate to those
of the house where both are owned by one /
man, than where the owners are different.
The reasons upon which it has been held
that no grant of right to air and light
can be implied from any length of continu-
Gus enjoyment, are equally strong against
implying grant of such right from the
mere conveyance of a house with windows
overlooking the land of the grantor. To
imply the grant of such right in either
case, without express words, would greatly
embarrass the improvement of estates,
and, by reason of the very indefinite char
acter of the right asserted. promote litiga-
ton. The simplest rule, and that best
suited to a country like ours, in which
are continually taking place in
the ownership and the use of lands, is that
no right of the character can be acquired
without express grant of an interest in, or
covenant relating to the lands over which
the right is claimed"
l am free to adopt either the principles
of the English or of the American Courts.
The circumstances of our island towns, be-
ing new and growing communities with
constant changes of ownership of land and
frequent changes in buildings, and erec-
tons are more analogous to the cOmmuni-
ties of the United States, and the reason
ing which has induced the Courts in
America to reject the English view, ap-
plies with equal force here.
/ am of the opinion that an easement III
light and air cannot be obtained in this
country by prescription, and therefore sus-
tain the demurrer.
A +. JUDD,
Chief Justice and Chancellor
Ashford & Ashford for plaintiff, w. A.
Whiting for defendant